State Of Washington, Resp-cross App V. Christopher Krug, Appellant-cross Resp

• Court: Court of Appeals of Washington
• Decided: January 31, 2022
• Docket: 81586-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 81586-5-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) CHRISTOPHER JOHN KRUG, ) ) Appellant. ) )

HAZELRIGG, J. — Christopher J. Krug appeals his convictions for possession

of a controlled substance and possession of drug paraphernalia. He alleges the

trial court erred by failing to timely enter its written findings of fact and conclusions

of law after a CrR 3.5 hearing, that the trial court erred in admitting his post-

Miranda1 statements, and that his conviction for possession of a controlled

substance should be reversed under State v. Blake.2 Because we find no prejudice

resulted from the delayed entry of written findings, his challenged statements were

properly admitted under Miranda, and his conviction for possession of a controlled

substance has already been properly vacated under Blake,3 we affirm.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2 197 Wn.2d 170, 481 P.3d 521 (2021). 3 While this appeal was pending, the parties supplemented the record with the Snohomish

County Superior Court order vacating Krug’s conviction for possession of a controlled substance. No. 81586-5-I/2

FACTS

After three separate trials on the same allegations, Christopher Krug was

convicted of unlawful possession of a controlled substance (heroin), then a class

C felony, and possession of drug paraphernalia, a misdemeanor. The first trial

ended in a mistrial after the State violated two separate court rulings on motions in

limine. In the second trial, a jury convicted Krug of possession of drug

paraphernalia, but hung on the possession of a controlled substance charge. At

the third trial, a jury convicted Krug of possession of a controlled substance. He

was sentenced for both crimes at a hearing conducted in June 2020.

Prior to trial, the court held a hearing pursuant to CrR 3.5. The State sought

to admit several statements made by Krug to Snohomish County Sheriff’s Deputy

Michael Wilson during his arrest. Wilson had noticed Krug’s vehicle at a local

coffee stand and after recognizing the vehicle and Krug inside, confirmed the

validity of an outstanding misdemeanor arrest warrant for Krug before contacting

him. Wilson arrested Krug pursuant to the warrant, asked him to step out of the

vehicle and placed him into handcuffs. Wilson asked Krug about a straw he saw

in Krug’s vehicle and asked if it “was a tooter.”4 Wilson searched Krug before

placing him into the patrol vehicle. Only then did Wilson read Krug his Miranda

rights. Krug indicated he understood his rights and made statements regarding

suspected methamphetamine and heroin. Krug challenged the admissibility of the

statements, arguing Wilson had engaged in a deliberate two-step interrogation

procedure to circumvent Miranda. The trial court issued an oral ruling at the

4 Tooter is a slang term used to describe a short straw segment, or some other similarly shaped object, used to inhale certain drugs, including smoked heroin.

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conclusion of the hearing, holding the statements were admissible and that

Wilson’s pre-Miranda warning questions about the straw were not sufficient to taint

the post-Miranda questions. At the time Krug’s opening brief was filed with this

court, written findings of fact and conclusions of law from the CrR 3.5 hearing had

not yet been entered.

Krug timely appealed.

ANALYSIS

I. CrR 3.5 Motion to Suppress

A. Delayed Entry of Written Findings of Fact and Conclusions of Law

First, Krug assigns error based on the delayed entry of written findings of

fact and conclusions of law after the admissibility hearing pursuant to CrR 3.5.

After a CrR 3.5 hearing, “the court shall set forth in writing: (1) the

undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts;

and (4) conclusion as to whether the statement is admissible and the reasons

therefor.” CrR 3.5(c). This is a “duty” of the court, and failure to comply with this

duty is error. CrR 3.5; State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196

(1998). The entry of written findings and conclusions is crucial in facilitating

appellate review and protecting the defendant’s constitutional rights. Error is

harmless, however, when “the court’s oral findings are sufficient to allow

appellate review.” Miller, 92 Wn. App. at 703.

On July 20, 2021, the court entered written findings and conclusions,

which reflected its earlier oral ruling. The written findings were filed with this

court on August 3, 2021, and Krug was able to challenge them in his reply brief.

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We hold the trial court erred in neglecting its duty to enter findings after

conducting its hearing, but because Krug fails to sufficiently demonstrate

prejudice from this error, he is not entitled to remand or dismissal on this basis.

B. Two-Step Interrogation Procedure

Krug next assigns error to the trial court’s determination that his

statements made post-Miranda should have been suppressed because they

were the product of an impermissible two-step interrogation procedure designed

to circumvent constitutional requirements.

“When reviewing the denial of a suppression motion, an appellate court

determines whether substantial evidence supports the challenged findings of fact

and whether the findings support the conclusions of law.” State v. Garvin, 166

Wn.2d 242, 249, 207 P.3d 1266 (2009). However, “[w]e review conclusions of

law from an order pertaining to the suppression of evidence de novo.” Id. We

also review “a trial court’s determination that police did not obtain a confession

in violation of Miranda” de novo. State v. Johnson, 94 Wn. App. 882, 897, 974

P.2d 855 (1999).

The Fifth Amendment to the United States Constitution grants individuals

the right to be free from self-incrimination. State v. Rhoden, 189 Wn. App. 193,

199, 356 P.3d 242 (2015). To protect this right while in police custody, “Miranda

warnings must be given when a suspect endures (1) custodial (2) interrogation

(3) by an agent of the State.” State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d

345 (2004). Before questioning an individual in custody, police must advise the

individual of their Miranda rights. State v. Hickman, 157 Wn. App. 767, 772, 238

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P.3d 1240 (2010). “Interrogation” includes express questioning and any “actions

on the part of the police that the police . . . should know are reasonably likely to

elicit an incriminating response from the suspect.” State v. Sargent, 111 Wn.2d

641, 650, 762 P.2d 1127 (1988) (alterations in original) (quoting Rhode Island v.

Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)).

If, after a suspect is properly advised of their rights, they knowingly,

voluntarily, and intelligently waive those rights, a confession is admissible.

Hickman, 157 Wn. App. at 772. However, even a confession made after Miranda

warnings must be suppressed if the post-warning statements were “obtained

during a deliberate two-step interrogation where the Miranda warning—in light of

the objective facts and circumstances—did not effectively apprise the suspect of

his rights.” Id. at 774 (quoting United States v. Williams, 435 F.3d 1148, 1157–

58 (9th Cir. 2006)). Courts look to objective evidence and “any available

subjective evidence,” to determine if a “two-step interrogation procedure was

used to undermine the Miranda warning.” Id. at 775 (alterations in original)

(quoting Williams, 435 F.3d at 1158–59). Examples of this evidence includes

“the timing, setting and completeness of the prewarning interrogation, the

continuity of police personnel and the overlapping content of the pre- and

postwarning statements.” Id.

Krug cites Miranda to support the contention that a pre-Miranda

exculpatory statement is sufficient to trigger a two-step inquiry. While Krug is

correct that Miranda makes “no distinction” between inculpatory and exculpatory

statements in its admissibility analysis, the question of whether a statement is

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admissible under Miranda is distinct from that required for a two-step

interrogation inquiry. There is a line drawn by our case law distinguishing the

test for the admissibility of a statement where no Miranda warnings are given,

inculpatory or exculpatory, from the inquiry as to whether a statement given pre-

Miranda warnings is sufficient to taint a statement made post-Miranda warnings.

In Bobby v. Dixon, the United States Supreme Court found there was no

two-step interrogation technique used where the suspect made only exculpatory

statements before being given Miranda warnings. 565 U.S. 23, 31, 132 S. Ct.

26, 181 L. Ed. 2d 328 (2011). The Court distinguished Bobby from its earlier

decision in Missouri v. Seibert, noting that “[i]n Seibert, the suspect’s first,

unwarned interrogation left ‘little, if anything, of incriminating potential left unsaid,’

making it ‘unnatural’ not to ‘repeat at the second stage what had been said

before.’” Id. (quoting 542 U.S. 600, 616–17, 124 S. Ct. 2601, 159 L. Ed. 2d 643

(2004)).

Courts in our state have reached similar conclusions in published and

unpublished decisions. In State v. Rhoden, Division Two of this court analyzed

whether Miranda warnings were effective where a suspect “had just provided the

same incriminating information” in a subsequent interrogation. 189 Wn. App. at

200. In Hickman, Division Two found a Miranda violation where the officer

elicited incriminating statements “amount[ing] to a confession.” 157 Wn. App. at

775–76. Similarly, in a recent unpublished opinion where a suspect had not

made a pre-warning incriminating statement, Division One determined that no

two-step interrogation procedure occurred. State v. Harris, No. 80372-7-I, slip

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op. at 11–12, (Wash. Ct. App. Oct. 5, 2020) (unpublished),

https://www.courts.wa.gov/opinions/pdf/803727/pdf.5 Because Krug did not

make any incriminating statements before the Miranda warning, the trial court did

not err in finding that Wilson did not engage in a deliberate two-step interrogation

procedure in order to circumvent Miranda.

In his reply brief, Krug challenges certain conclusions of law in the late-

filed findings of fact and conclusions of law from the CrR 3.5 hearing. Having

considered those conclusions of law in light of the record before us, it is clear

that they properly flow from the unchallenged findings of fact.6 Further, as set

out above, our de novo review demonstrates that trial court did not err in its

ultimate conclusion that no two-step interrogation procedure was used.

However, the reasoning offered by the State for Wilson’s questioning of

Krug prior to advising him of his Miranda rights calls for some consideration.

Wilson testified that it is his general practice to delay giving Miranda warnings

until a suspect is secured in his patrol vehicle because he has to put on glasses

and hold the card. Wilson admitted that he had “various discussions” with Krug

prior to giving him Miranda warnings, but that it was not an interview; it was

simply “small talk.” Any desire by law enforcement to engage in “small talk” with

5 Unpublished opinions are not binding upon this court, but may be accorded persuasive value. GR 14.1(a). 6 The court held in one conclusion of law that the pre-Miranda questioning as to the

suspected tooter did not taint the future questioning by Wilson regarding the suspected methamphetamine and heroin, but we would note that a direct question as to whether an item is the precise sort of drug paraphernalia used to ingest the very controlled substances that were the subject of later post-Miranda questioning could, in fact, result in a finding of improper two-step interrogation by law enforcement. The pre-Miranda question about the tooter resulted in an exculpatory statement here, but is the very sort of question that is likely to elicit an incriminating response that goes to the heart of Miranda analysis.

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a suspect must be curtailed until after proper Miranda warnings have been given.

While Wilson’s practice of waiting until a suspect is in the vehicle to give Miranda

warnings is not problematic in itself, it is concerning in light of constitutional

considerations that Wilson chose to ask Krug questions likely to elicit an

incriminating response prior to giving him proper Miranda warnings. If Wilson

has decided it is best for him, due to safety concerns, to wait to give Miranda

warnings until the suspect is in his patrol vehicle, he may similarly wait to ask

questions about whether an item is drug paraphernalia.

Because the trial court did not err in admitting Krug’s post-Miranda

warning statements, and because Krug was not prejudiced by the delayed entry

of the written findings, we affirm his conviction for the misdemeanor offense of

possession of drug paraphernalia.

WE CONCUR:

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